The FATCA/AEOI Papers: Mishcon publishes research trove, unearthed as part of crowd-funded UK FATCA case https://t.co/NQRwGz1QDc
— U.S. Citizen Abroad (@USCitizenAbroad) July 13, 2020
Americans abroad, Accidental Americans and American emigrants (collectively referred to as “US Persons”) are the targets of FATCA and US citizenship-based taxation. They did NOT create the laws. But, they are now the single biggest obstacle to achieving success in the courts, US Congress, US Treasury and engaging the interest of other governments. To put it simply: the very group that Jenny is trying to help is working (sometimes consciously and sometimes unconsciously) against her.
Here are the reasons why:
1. The basis of Jenny’s legal case is that the provisions of the FATCA IGA conflict with Europe’s GDPR. She has retained the services of a superb law firm and lawyer to advance this case. Her claim does NOT attempt to take down FATCA per se and her claim takes no position on US citizenship-based taxation generally. Her goals are narrow and based on the theory that the “fishing expedition” that is FATCA is not proportional when measured against the values enshrined by the GDPR. The legal fees are entirely reasonable and (given the tens of thousands individuals impacted) well within reasonable funding expectations.
Yet, at this moment there are only 504 contributions to her cause (and some of those may represent multiple contributions from the same individual). As many have pointed out, Jenny’s lawsuit can be easily funded. The damage is there and people are suffering. In Europe there have been problems with banking access and large numbers of people have been pressured to enter the US tax system. Yet, given a strong legal case, a great law firm and a cost that can easily be met, people will not contribute.
2. The reality is that the advocacy groups (Canada’s ADCS) have engaged in “crowd funding”. This has taken place largely at the Isaac Brock Society in Canada and on the American Expatriates Facebook group in Europe. Both the Canadian lawsuit and Jenny’s UK based lawsuit have had trouble meeting their funding objectives. But, the “public nature” of the funding failure is very damaging. Governments respond to public pressure. The governments of Canada and the UK are NOT governments that take the view that:
“The business of the public is not the public’s business”.
The failure to fund the lawsuits can easily be interpreted by governments to mean that:
- few dual citizens are actually affected by these problems; and/or
- few dual citizens are actually upset and harmed by FATCA and US citizenship-based taxation.
Clearly there is not huge public pressure on governments to take this issue seriously. By way of comparison, see the masterful job done by Radd Seiger in pressuring the UK government in the Anne Sacoolas extradition case.)
3. The failure by those impacted by FATCA and citizenship-based taxation to understand these are problems that are greater than their immediate interests. That said, most impacted simply (for whatever reason) are happy to let this problem pass on to their children. Why is this? How can this be? The following insightful comment from Facebook suggests an answer:
“I hate to be pessimistic but I do not think that Americans Overseas are united. They live in different countries, are dispersed, have different politics and will most always put their political party before other considerations. They are also in fear of and hiding from the IRS. Put that all together and you get a crowd of mainly disgruntled people who don’t have what it takes to get together. Really, really too bad.”
4. Because they can’t see FATCA and citizenship-based taxation as a problem that is greater than their personal circumstances, they imagine that the problems will go away through noncompliance. Noncompliance may be a personal solution for them. But, will NOT contribute to the efforts needed for this problem to go away.
5. As the Facebook comment above implies, “US Persons Abroad” are a diverse group. There is a small but not insignificant number of individuals who use social media to actively campaign against the wisdom of anti-FATCA advocacy. You will recognize them by claims which include:
No, it would be bad for a lawsuit against the FATCA IGAs to succeed. This would make it far more difficult for those Americans abroad who are flying under the radar …
Yup, those directly impacted, don’t have what it takes. Look where that leaves them. They won’t support the Jennys of the world and and frankly they are hanging her out to dry. Seriously …
The funding of Jenny’s lawsuit could have been and still can be so easily achieved.
Q. Why is Jenny’s FATCA lawsuit not proceeding?
A. Because those US person who could easily fund aren’t willing to make the effort.
It’s far worse than not funding the lawsuit. It’s actually strengthening the position of the governments, the government agencies and the government lawyers. If you were a government would you take this case seriously when:
A. On the way one hand contributions have been solicited from the American Expatriates Facebook group that has approximately 7000 members; and
B. There are only 504 contributions.
Some “US persons abroad” file US taxes and some do not. Most “US persons abroad” worry about this as a general problem. If “US Persons abroad” wonder why they have a problem, they need only look in the mirror.
There are my words. Here are Jenny’s words …
Jenny’s general message to supporters …
Update on FATCA & HMRC: breaching my human rights to data protection and privacy
Dear generous supporters,
Thank you so much for the pledges made within the past week. The campaign now has 504 pledges totalling £84,773. As I said in my previous message, £81,853 of this has long since been spent, and we have accumulated only a few thousand pounds out of the £75,000 that is needed to launch a Judicial Review against the ICO’s decision of 29 May 2020.
We have only five days left in which to secure the remaining £71,227 to appeal the ICO’s decision.
The fact that throughout the 10-month life of this campaign and compilation of a huge corpus of research and correspondence by my incredible legal team, which has been published online, it has attracted only 504 pledges speaks volumes about the level of interest in this claim. Last week we had a very kind anonymous donor offer to pledge an extra £10 for each contribution made over a 48-hour period, and this resulted in only 27 pledges (£270 was pledged by the donor as agreed).
In light of this, it is very difficult to see how the campaign will be able to achieve the hundreds more pledges needed within the next five days, unless there is a miracle.
The strength of our arguments and evidence going into Court to appeal the ICO’s decision is not in question. But without funds, we cannot pay the barristers, and we cannot launch the appeal. Being unable to bring the ICO’s ineptitude before the English courts is a dreadful outcome. It means that despite all of this hard work, the government will continue to trample on our fundamental rights, and ordinary people and their families will continue to be harmed by FATCA’s disproportionality.
I am proud of what we have achieved and that this campaign has lasted for 10 months and counting. It would never have gotten this far without your commitment to justice.
Jenny writes on Facebook …
To the thousands of people here who have not bothered to pledge so much as one pound at any time during the 10 months that this campaign has been live, do you realise what it looks like when people outside our community, including officials from data protection authorities, see that this campaign has only a few hundred supporters? Why won’t you contribute to solving the problems that have plagued us and our families for the better part of a decade? Do you know or care that you are providing evidence that there is very little interest in fixing these problems? Why are you in this group if you do not care about the priorities that are spelled out very clearly at the top of this page? https://www.crowdjustice.com/case/fatcahmrcprivacybreach/
In conclusion – a special message for Canadians …
To support Jenny’s UK Judicial Review Application is to support Canada’s @ADCSovereignty lawsuit
Section 8 of Canada's Charter Of Rights says: "8. Everyone has the right to be secure against unreasonable search or seizure." We know #FATCA is a search. Is that search unreasonable? @ADCSovereignty says yes. What might Canada's Dept of Justice think? https://t.co/w51LHCDj8l
— U.S. Citizen Abroad (@USCitizenAbroad) July 13, 2020
Of course you should support both. But, (I will write a separate post on this) it seems to me that:
A UK ruling that the FATCA IGAs conflict with Europe’s GDPR rules, would be highly relevant in establishing that the FATCA IGA violates S. 8 of the Canadian Charter of Rights (a ground that I understand is part of the ADCS appeal).